April 17, 2012, Self Represent Court Files Motion for Recusal of Judge Madame Justice Judy...

8/2/2019 April 17, 2012, Self Represent Court Files Motion for Recusal of Judge Madame Justice Judy Clendening who preside…

http://slidepdf.com/reader/full/april-17-2012-self-represent-court-files-motion-for-recusal-of-judge-madame 1/8

.\

IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK

T R IA L D IV IS IO N

JU DIC IA L D IS TR IC T O F F RE DE RIC TO N

BETWEEN:

A N D R E MURRAY,

Plaintiff,

-and-

ROYAL BANK OF CANADA & 501376 N.B.

Ltd., a body corporate

N OTIC E O F M OTIO N

(FORM 37A)

Defendant( s),

AVIS DE MOTION

(FORMULE 37A)

TO:

George H. LeBlanc

Cox and Palmer

Solicitor for the Plaintiff

ROYAL BANK OF CANADA

644 Main Street, Suite 500,Moncton, N. B. EIC lE2

Telephone Main 506 856 9800

Telephone Direct 506 3824529

Fax 5068568150

DESTINATAIRE :

C OU RT OF Q UEEN 'S BENC HFREDER ICTON NS

R EC ~V ED A ND F I L E O

A P R 17 l 0 1 2

C O U l l D U BANe DE LA RE INE" .F RE DE RIC TO N N -fJ .R EQ U ET D EPbsE

TO:Hugh Cameron

Solicitor for the Plaintiff

501376 N.B. Ltd., a body corporate,

Stewart McKelvey, Barristers,

Solicitors and T radem ark Agents

Suite 600, Frederick Square,77 Westmorland Street,

Fredericton NB, E3B 5B4,

E-mail address:

[email protected]

Telephone 506.458.1970

Fax: 506.444.8974

1

mailto:[email protected]




The Plaintiff' Andre Murray will

apply to the Court of Queen's Bench of

New Brunswick, Trial Division at the

Justice Building, 427 Queen Street,

Fredericton, New Brunswick, on the

27th day of April. 2012 at 9:30 a.m. fo ran order that:

a) That an abridgement of time be

granted to serve the within Noticeof Motion and supporting

Affidavits Court File No.:

FICI148/11 pursuant to rule

3.02 of the Rules of Court and

in accordance with Rule 1.03,2.01 and 2.02 of the Rules of

Court;

b) This learned trial judge

Madame Justice Clendening

d oe s R e cu se h er se lf fromfurther matters regarding

Plaintiff Andre Murray;

c) Ifnecessary, any matter ofprocedure, not provided for, by the

New Brunswick Rules of Court, or

by any Act, the Court may on this

Motion give directions pursuant to

Rule 2.04 and Judicature Act;

d) Defendants shall pay costs of the

within Notice of Motion if theyoppose same;

e) Such further order that this Court

may deem just;

Le demandeur (ou selon le cas)

demandera alaCom iL " .

(lieu precis) , Ie .2012 " . " . "' a . " h ,

d'ordonner (indiquer I'ordonnancedemandee, le s motifs a discuter et les

r en vo is a u xd is po sitio n s le glis la tiv es o u

regles qui seront invoquees);

2



The grounds to he argued Les motift a discuter

Granting time abridgment1. The Plaintiff argues that the Court may keep with the general direction expressed in

the New Brunswick Ru1es of Court, Rule 1.03(2) "to secure the just, least expensive and

most expeditious determination of every proceeding on its merits", by taking into

consideration the prejudice caused against the Plaintiff, ifthe Court does not grant therequested abridgment of time, therefore, the result would be that the Plaintiffwill be

unable to have a just decision rendered on the Merits.

2. The Plaintiff argues that the principle of natural justice which is to hear the other

side/party, compels the Court to grant the abridgement of time, furthermore, justice will

be best served by granting, as requested, the subject abridgement time, furthermore, the

balance of prejudice favorsgrantingthe abridgement.Balancing these and any other relevant

factors will therefore enable the Court to see that justice is done.

3. The Plaintiff argues that the cour t mayconsiderthat it is in the interests of justice thatthis honorable Court grants the subject abridgment of time pursuant to Rule 3.02 which is

harmonious with Rules of Court Rule 1.03, Rule 2.01 and 2.02 so that any interim

Motions, to the Notice of Action and Statement of Claim may be determined upon its

merits.

4. The Plaintiff argues that the Defendants will not be prejudiced in any meaningful

manner if the time to allow Process Service of these subject Court Documents is

abridged, under Rule 3.02 of the Rules of Court and inaccordance with Rule 1.03; 2.01;

and 2.02 of the Rules of Court.

5. The Plaintiff further argues that the Law Society of New Brunswick Code of

Professional Conduct, CHAPTER 15 (2)(iii); 15 (2) (vii); and 15 (4) compels (inthismatter) the Defendant's Solicitors to not take advantage of or act without fair warning

upon slips, irregularities or mistakes on the part of another lawyer not going to the merits

or involving a sacrifice or prejudice of the rights of the client. Inaddition the lawyer shallnot impose upon another lawyer impossible, impractical or manifestly unfair conditions

of trust including those with respect to time restraints and the payment of penalty interest.

The solicitor on record for defendant also has legislated obligation under 1996 Law

Society ACT SNB SECTION 5 (a) (b) legislated mandate to protect public interest up

hold justice and protect the rights and freedoms of all persons. Furthermore, the Solicitor

for the Defendants should agree to reasonable requests according to the same principles

of good faith and courtesy observed toward other lawyers, inthis case toward the

Plaintiff, a layperson lawfully representing himself, in a request of the Honorable Court

for an abridgment of time, because the position of the Defendant will not be prejudicedmaterially by agreeing to the requested abridgment of time.

Reensal

6. It is contrary to the public interest for decisions to be made where there may be alikelihood of favour to another influencing the determination. '

3



7. Thegeneralru le is that a b ia s issu e m ust be raised at the first practicable

opportunity, which more often than not will occur at the formal opening of the hearing.

8. Ifone returns to the policy rationales underscoring the need to preserve impartiality

in the decision-making process, it is apparent that the bias rule serves two objectives.

First, it seeks to ensure fairness between the parties. Each of the parties is entitled to, and

expects, an impartial decision-maker. Second, the rule seeks to promote public

confidence in the decision-making process. A decision-maker who lacks impartibility

brings the administration of justice into disrepute.

9. The Plaintiff herein would like to place emphasis between "actual" and "perceived"

bias, while at the same time emphasizing that the Plaintiff is not attacking the personal

integrity of the Judge, who does appear to be intelligent and competent in other matters

not involving the Plaintiff.

10. When a judge isMotioned to Recuse themselves, such decisions by the judge willhave to be made in the exercise ofhislher discretion actingjudicially, and not for any

improper or abstract reason or motive.

11. When it may be demonstrated a reasonable apprehension of bias exists, that

finding. therefore. retroactively renders all the decisions and orders made during the

proceedings void and without effect.

12. Should this Honorable Court refuse Hearing this preliminary Motion for recusal

before any other matter is heard, however to not hear this Motion for recusal as a

preliminary matter, in fact may demonstrate two errors of principle: violation of the right

to be heard and violation of the right to a litigant to have an unbiased decision-maker.

The failure of this trial judge to hear the Plaintiff, on the recusal Motion beforeconsidering the following Motions, will not only fail to remedy the allegations made by

the Plaintiff, but constitutes proof of the same.

13. With respect to bias, I would note that it can come in many forms. It need not be

demonstrated against an individual because of his or her personal attributes, circumstance

in life or previous interactions between the judge and the accused. A judge can

demonstrate actual bias or create a reasonable apprehension of bias because of his or her

personal beliefs on the issue to be determined. This Court has made statements in

previous hearings. criticizing the Plaintiffs style of writing, claiming the Plaintiff

provided written arguments that the Court could not understand, the Court even provided

written criticism of the Plaintiff Affidavits in written decisions. as an example the Court

rejected the information contained therein, except for those bits of information whichwere considered by the learned trial judge to be contrary to the Plaintiff's position. The

Court has stated criticism of the Plaintiff's style of presentation and continues to

displayed disdain for self represented litigants verbally and otherwise. These subject

statements and utterances by the learned trial judge, taken together, give a clear

indication that there not only was a isolated incident or circumstance condition but

4



continues to be perceived as a persistent reasonable apprehension of bias, therefore that

Madame Jus tice Clendening ha s demonstrated that she has a closed mind on the subject. Iam of the view the Madame Justice Clendening has demonstrated reasonable

apprehension of bias against the interests of the Plaintiff.

14. The right to a trial before an impartial judge isof fundamental importance to our

system of justice. Should it be perceived that the words or actions of a trial judge have

exhibited bias or demonstrated a reasonable apprehension of bias then a basic right has

been breached and the exhibited bias therefore renders the proceedings unfair. Generally,

any decision reached and the subsequent orders made in the course of such proceedings,

which are tainted by ''reasonable apprehension of bias", as a result of taint of bias, are

decisions void and unenforceable. It would be a waste of the parties' time and judicial

resources to continue on with hearings, the results of which Rulings/decisions would

require the Court of Appeal hearing that subject Rulings/decisions may be overturned on

appeal.

15. The test to be applied in determining whether a decision-maker's conduct or wordsdemonstrate a reasonable apprehension of bias is whether an informed person, viewing

the matter realistically and practically, and having thought the matter through, would

conclude that consciously or unconsciously, the decision-maker would be motivated by a

bias: an application for recusal based upon bias or reasonable apprehension of bias, the

applicant must demonstrate wrongful or inappropriate declarations, actions or conduct

showing a state of mind that "sways judgment",

16. A party may waive his objections to a decision-maker who would otherwise be

disqualified on grounds of bias. Objection is generally deemed to have been waived if the

party or his legal representative knew of the disqualification and acquiesced intheproceedings by failing to take objection at the earliest practicable opportunity. But there

is no presumption of waiver if the disqualified adjudicator failed to make a completedisclosure of his interest, or if the party affected was prevented by surprise from taking

the objection at the appropriate time, or ifhe was unrepresented by counsel and did not

know ofhis right to object at the time.

17. For this reason the law holds that the right to set aside a decision on the basis of a

reasonable apprehension of bias is waived ifhe issue is not raised at the first practical

opportunity, Ifa timely objection is raised, the decision-maker has the opportunity to

reflect on whether recusal is warranted in the circumstances. However, waiver will be

inferred only if the party alleging bias was aware of the pertinent facts that would support

a bias allegation.

18. For the Court to deny the hearing of the recusal Motion as a preliminary matter,

therefore at first opportunity, will cause an unjustifiable prejudice to the Plaintiff.

Conduct

5



19. I Andre Murray believe that learned trial judge Madame Justice Clendening

exhibits behav iour o f se ri ou s conce rn to me, therefore such conduct renders thisparticular judge unfit to sit on the bench regarding my matters.

20. A judge must be impartial when hearing anyone's case, be respectful and courteousthroughout the proceedings, and maintain a high standard of integrity, as in these mattersMadame Justice Clendening was none of those.

21. From utterances/comments directed to Andre Murray in the courtroom, body

language and actions, Madame Justice Clendening has shown reasonable apprehension of

bias towards Andre Murray.

22. Madame Justice Clendening has in my opinion (as a result of much observation and

first hand experience) not conducted herself, as to her interactions with me, in a way thatwill sustain and contribute to public respect and confidence in Madame Justice

Clendening integrity, impartiality and good judgment when presiding over matters

concerning Andre Murray.

23. Madame Justice Clendening has not exhibited high standards of conduct, so as to

reinforce public confidence when presiding over matters concerning Andre Murray.

24. Madame Justice Clendening has not, when presiding over matters concerning

Andre Murray before the court, treated me Andre Murray with common courtesy and

equality, and Ibelieve Iave been discriminated against.

25. Madame Justice Clendening has verbalized comments, expressions, physical

gestures and behaviour which may be interpreted as showing insensitivity or disrespect

when presiding over matters concerning Andre Murray ..

26. Madame Justice Clendening should be, and or appear to be, impartial at all times,

but regrettably, has not when presiding over matters concerning Andre Murray ..

27. Madame Justice Clendening has made inappropriate comments, improper

remarks and unjustified reprimands, which has undermined the appearance of impartiality

and demonstrated a reasonable apprehension of bias when presiding over mattersconcerning Andre Murray ..

28. Madame Justice Clendening has made unjustified reprimands of myself, insulting

and improper remarks about my witnesses, these statements have evidenced prejudgment

and intemperate and impatient behaviour which has the effect of destroying theappearance of impartiality when presiding over matters concerning Andre Murray ..

29. These actions must, therefore, have created in the mind of a reasonable, fair minded

and informed person an impression of a lack of impartiality when presiding over matters

concerning Andre Murray ..

6



30. Madame Justice Clendening's actions affect not only myself but public confidence

in the judiciary generally, and such matters bring the administration ofjustice intodisrepute, is damaging to the judge, the judiciary as a whole and the good administration

of justice. Without that subject public confidence the system cannot command the respect

and acceptance that are essential to its effective operation.

31. Madame Justice Clendening has not been diligent in the performance of

adjudicative duties, such as striving for impartial and even-handed application of the law,

thoroughness, decisiveness, promptness and the prevention of abuse of the process and

improper treatment of witnesses and litigants when presiding over matters concerning

Andre Murray ..

32. The Constitution and a variety of statutes enshrine a strong commitment to equality

before and under the law and equal protection and benefit of the law without

discrimination, that of which I have not been afforded. I am entitled to the equal worth

and human dignity of allpersons. Furthermore, Canadian law recognizes that

discrimination is concerned not only with intent, but with effects. Fair and equaltreatment has long been regarded as an essential attribute of justice, because equality is at

the core of justice according to law.

33. The conduct of Madame Justice Clendening when presiding over matters

concerning Andre Murray, has the effect of removing public confidence in, and respectfor, the judiciary as a whole, which are essential to an effective judicial system and

ultimately, to democracy founded on the rule of law.

34. Madame Justice Clendening's actions and conduct when presiding over matters

concerning Andre Murray, over the subject four Court Hearings of various matters

concerning my affairs have demonstrated a lack of integrity, which is capable of

undermining public respect and confidence.

35. Madame Justice Clendening should have conducted herself when presiding over

matters concerning Andre Murray, in a way that will sustain and contribute to public

respect and confidence in their integrity, impartiality and good judgment, unfortunatelyfor all of us she has not.

3(). Madame Justice Clendening's conduct when presiding over matters concerning

Andre Murray, is likely to diminish respect for the judiciary in the minds of the

community and myself, further has created a perception which is likely to lessen respect

for the judge or the judiciary as a whole. This impugned conduct must reflect upon the

central components of the judge's ability to do the job.

Costs37. The Plaintiff argues that the Court may find that, since the Defendants do not and or

did not agree to this request for an abridgment of Time for Service of subject Court

7



Documents; this is a just opportunity, therefore deserving the Plaintiff, of the award of

costs against the Defendants, Plaintiff encourages the Court to do just that.

Upon the hearing of the motion the

following affidavits or other documentary

evidence will be presented:

1. Affidavit of Andre Murray dated the

17th day of April, 2012.

2. such further and other material as maybe necessary

You are advised that:

(a) you are entitled to issue documents and

present evidence at the hearing in English or

French or both;

(b) the Defendant intends to proceed in

the English language; and

(c) ifyou intend to proceed inthe other

official language, an interpreter may be

required and you must so advise the clerk at

least 7 days before the hearing.

DATED at Fredericton, N.B. this 17th day of

April, 2012.

Andre Murray

PlaintitT

31 Marsha» Street,

Fredericton, New Brunswick,

E3A4J8

[email protected]

A I'audition de la motion, les affidavits ou

les autres preuves Iitterales suivantes seront

presentees: ( enumerer l es p reuves l iueral esqui seront tuilisees lors de l'audition de la

requete

Sachezque:

a) vous avez Ie droit d'emettre des

documents et de presenter votre preuve it

l'audience en francais, enanglais ou dans lesdeux langues;

b) le demandeur (ou selon le cas) a

l'intention d'utiliser la langue ; et

c) si vous avez I'intention d'utiliser l'autre

langue offieielle, les services d'un interprete

pourront etre requis et vous devrez en aviser

le greffier au moins 7jours avant I'audience

FAIT a .le 2012

Avocat du demandeur (ou seton le cas)

8



April 17, 2012, Self Represent Court Files Motion for Recusal of Judge Madame Justice Judy...

Documents

Transcript of April 17, 2012, Self Represent Court Files Motion for Recusal of Judge Madame Justice Judy...